Virginia Telehealth Prescribing: Establishing a Valid Provider-Patient Relationship

Virginia has been a leader in establishing a comprehensive regulatory framework for telehealth services, particularly regarding the establishment of a provider-patient relationship as a prerequisite for prescribing medications. Healthcare businesses operating or planning to operate in the Commonwealth must understand and adhere to these regulations to ensure compliance and avoid potential enforcement actions.

The Foundational Requirement: Valid Provider-Patient Relationship

In Virginia, a valid practitioner-patient relationship must be established before a practitioner can provide treatment, including prescribing medication, through telehealth. This is a core principle enshrined in Virginia law and board regulations. The intent is to ensure that remote care maintains a standard of care equivalent to in-person care and that prescribing is done responsibly.

Virginia Code and Board Regulations

The primary regulatory framework for telehealth in Virginia is found in the Code of Virginia and the regulations promulgated by the Virginia Board of Medicine. Specifically, Virginia Code § 54.1-3408.01 addresses the prescribing of Schedule II through VI drugs and devices, including requirements for a bona fide practitioner-patient relationship. Further details are provided in the Virginia Board of Medicine's Regulations Governing the Practice of Medicine, Osteopathic Medicine, Podiatry, and Physician Assistants, particularly 18 VAC 85-20-36.1, which specifically outlines the requirements for the practitioner-patient relationship in the context of telehealth.

According to these regulations, a practitioner-patient relationship may be established through one of the following methods:

1. An in-person examination. This is the traditional method and always considered valid.
2. A synchronous interaction through an audiovisual communication system. This means a real-time, two-way video and audio connection between the practitioner and the patient. This is the most common method for establishing a relationship remotely.
3. In some cases, a synchronous interaction through an audio-only communication system. This is generally permitted only if the standard of care does not require an in-person examination or an audiovisual encounter, or if the patient is unable to access or does not have the technology for an audiovisual encounter. This exception is critical but must be applied judiciously.

It is crucial to note that the regulations explicitly state that a practitioner-patient relationship shall not be established solely through:

• An online questionnaire.
• An email exchange.
• A text message.
• A telephone conversation (unless it meets the specific audio-only exception).

These restrictions are designed to prevent